4 of sustaining the closing or other action in question would be upon the agency. The court could grant any appropriation relief, including but not limited to enjoining future violations of the act or releasing the transcript of an improperly closed meeting. EX PARTE COMMUNICATIONS Section 4 of the bill would enact a general prohibition on ex parte communications between agency decisionmaking personnel, including commissioners and administrative law judges, and outside persons having an interest in the outcome of a pending proceeding. These provisions would apply to executive agencies without regard to whether they are headed by a collegial body or a single individual. The communications prohibited by the ex parte section would include only those relative to the merits of the proceeding. Thus, an inquiry of an agency clerk as to the procedural status of an adjudication or rulemaking matter would not be unlawful under the bill. A violation of the prohibition could result in sanctions up to and including loss of the proceeding on the merits (as under existing case law). See, e.g., Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75 (D.C. Cir.), cert. denied, 382 U.S. 893 (1965). HISTORY OF THE LEGISLATION This legislation represents a further, logical step in the continuing process of opening governmental decisionmaking to the public at the Federal and State levels. The Freedom of Information Act, making documents of executive departments and agencies generally available to the public, was enacted in 1966 (Public Law 89-487, 80 Stat. 250) and codified as section 552 of title 5, United States Code, the following year (Public Law 90-23, 81 Stat. 54). In 1972, Congress enacted the Federal Advisory Committee Act. (Public Law 92-463, 86 Stat. 770, 5 U.S.C. App. I), designed to open to the public the meetings of advisory committees, study panels and ad hoc committees in the executive branch. In 1974, after eight years of experience under the Freedom of Information Act and several series of oversight hearings and studies, Congress enacted strengthening amendments to that statute (Public) Law 93-502, 88 Stat. 1561). In March 1973, the House adopted H. Res. 259, generally requiring meetings of House committees (including markup sessions) to be open to the public. On November 5, 1975, the Senate adopted S. Res. 9, opening to public observation markups and other sessions of Senate committees. The adoption of S. Res. 9 also completed the necessary action to open meetings of conference committees (the House action in this regard had been taken earlier in 1975 by H. Res. 5, but the effectiveness of the House provision had been stayed pending the adoption of a similar rule by the Senate). The present legislation relates only to open meetings of agencies in the executive branch. It made its first congressional appearance in 5 1972 (H.R. 16450, 92d Cong., 2d Sess.) and was reintroduced in the 93d Congress with a total of almost 50 co-sponsors. In the present Congress, various versions of the legislation in the House have a total of 85 co-sponsors. The Senate Government Operations Subcommittee on Executive Reorganization held hearings on S. 260, a counterpart to H.R. 11656, in 1974, and passed S. 5, a similar measure, on November 6, 1975, by a vote of 94-0. HEARINGS The Government Information and Individual Rights Subcommittee held hearings on H.R. 10315 and H.R. 9868, earlier versions of this legislation, on November 6 and 12, 1975. Witnesses included representatives of executive agencies, the press, the bar, and the public. COMMITTEE VOTE At a meeting of the full Committee on Government Operations on March 2, 1976, a quorum being present, H.R. 11656, as amended, was approved and ordered reported by a vote of 32 ayes to 7 nays. STATEMENT PURSUANT TO CLAUSE 7(a) OF RULE XIII The committee estimates that the ex parte provisions of the legislation will result in no additional costs. The committee anticipates that most of the costs incurred in connection with the open meeting provisions will be for the clerical and administrative work they require. The committee estimates that such costs will be minimal. Under the bill, most agency meetings will be open to the public and will therefore not require transcripts or electronic recordings. In most instances, minutes are already taken at such meetings, so the only additional expense will be that of duplicating one or more sets of the minutes to be made available to the public. (Ordinarily, a member of the public desiring his own set of the minutes will bear the expense of copying.) The only other cost of an open meeting under this legislation is that of the public announcement; this too, should be negligible. An agency closing a portion of a meeting will have to make a transcript or electronic recording thereof. Thus, the more frequently an agency closes meetings, the greater will be the cost. Considering the approximately 50 covered agencies as a whole, the committee estimates that relatively few portions of meetings will be closed and that the costs associated with closings will therefore be minimal. This cost will be further reduced if an electronic recording device, rather than stenographic notation, is used. The cost of electronic recording equipment estimated at a few thousand dollars per covered agency. The cost of transcription will be borne in large measure by members of the public requesting copies of transcripts. The committee's estimate comports with that provided by the Comptroller General. 6 STATEMENT PURSUANT TO CLAUSE 2(1) OF RULE XI (A) No oversight findings or recommendations have been made. with regard to this measure. (B) This measure does not provide for additional budget authority. (C) The estimate and comparison prepared by the Director of the Congressional Budget Office under section 403 of the Congressional Budget Act of 1974 follow. Unless otherwise stated, all figures represent cumulative totals for the approximately 50 agencies covered by the open meeting provisions of the bill: COST ESTIMATE Any projections of the costs of the "Sunshine Act" has to be 1 $30,000 for recording devices, 25 percent of $130,000 in personnel costs. 2 Salaries are tied to the changes in the CPI at a 5-percent real growth rate in GNP. BASIS OF ESTIMATE The cost of a conference recording device should be about $400. This analysis has assumed that half of the fifty or so agencies in question will purchase one new recording machine, and that the other half will require two. As for hiring additional clerical help, the assumption here is that one-quarter of the fifty agencies will do so at an average salary of $10,000 annually. If Congressional expectations that there will be few closed meetings are realized, this estimate on personnel could be on the high side of the spectrum. ESTIMATE COMPARISON Senate Report 94-354 estimates that the cost per agency will be a few thousand dollars. The CBO cost projections are also in that range. STATEMENT PURSUANT TO CLAUSE 2(1) (4) OF RULE XI The enactment of this bill into law is not expected to have any inflationary impact on prices or costs in the operation of the national economy. 7 SECTION-BY-SECTION ANALYSIS SECTION 1 Section 1 provides that this act may be cited as the "Government in the Sunshine Act." SECTION 2 Section 2 declares that it is the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government, and that it is the purpose of this act to provide the public with such information to the maximum extent possible without infringing the rights of individuals or significantly interfering with the ability of the Government to carry out its substantive responsibilities. SECTION 3 Section 3 adds a new section 552b, entitled "Open meetings", to title 5 of the United States Code. Subsection (a) Subsection (a) defines certain terms employed in section 552b. Since section 552b will be part of chapter 5 of title 5, United States Code, the definitions contained in existing section 551 also apply to it unless inconsistent with the definitions in subsection (a). The term "agency" includes (1) any Federal agency, as defined under the Freedom of Information Act (5 U.S.C. § 552(e)), which is headed by a collegial body composed of two or more members, a majority of whom are appointed by the President with the advice and consent of the Senate, (2) any subdivision thereof authorized to act on behalf of the agency (without regard to the number of members composing or included in the subdivision), and (3) the Federal Election Commission. Though a single agency head, his deputy, and his assistants may "head" an agency in the colloquial sense, they do not have common duties and thus are not a collegial body, and their agency would not come within this definition. On the other hand, while the chair of a commission that heads an agency may have certain responsibilities over and above those of his or her fellow commissioners, his or her position as primus inter pares would not remove the agency from the coverage of section 552b. A subdivision of an agency covered under section 552b is covered if it is authorized to act on behalf of the agency. Panels, or regional boards of an agency are covered if authorized to act on behalf of the agency, even if their action is not final in nature. Thus, panels or boards authorized to submit recommendations, preliminary decisions, or the like to the full commission, or to conduct hearings on behalf of the agency are required to comply with the provisions of section 552b. While the definition of agency does not include advisory committees generally, it does include other bodies composed of part-time Govern 8 ment employees which meet from time to time to review agency activities and give guidance to staff, approve staff actions, review and approve the agency's proposed budget, and so forth. Such a board or group would come within the definition of an agency even though day-to-day supervision might be provided by a single administrator. A specific provision as to the applicability of the Federal Advisory Committee Act, 5 U.S.C. App. I, is contained in subsection (o) of section 552b. The use of a generic definition for the agencies covered by the bill parallels the Administrative Procedure Act, 5 U.S.C. § 551(1), the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. MEETING The term "meeting" means the deliberations of at least the number of agency members required to take action on behalf of the agency, where such deliberations concern the joint conduct or disposition of agency business. The word "deliberations" includes not only a gathering of the requisite number of members in a single physical place, but also, for example, a conference telephone call or a series of two-party calls involving the requisite number of members and conducting agency business. The conduct of agency business is intended to include not just the formal decisionmaking or voting, but all discussion relating to the business of the agency. The limitation of the definition to "joint" conduct is intended to exclude a situation where the requisite number of members is physically present in one place but not conducting agency business as a body (as, e.g., at a meeting at which one member is giving a speech while a number of his fellow members are scattered throughout the audience). It does not exclude the situation where a subdivision authorized to act on behalf of the agency meets with other individuals concerning the conduct or disposition of agency business. MEMBER The term "member" means an individual who belongs to a collegial body heading an agency. Such an individual is a member for the purposes of section 552b even if not appointed by the President and confirmed by the Senate, so long as a majority of the members of the body are so appointed and confirmed. Subsection (b) Subsection (b) sets forth the basic principle of section 552b, namely. that unless specifically exempted by subsection (e), every portion of every meeting must be open to public observation. The presumption in every instance is that a meeting shall be open to the public, and this presumption may be overcome only by a preponderant showing that the portion proposed to be closed clearly comes within one of the exemptions contained in subsection (c). The phrase "open to public observation," while not affording the public any additional right to participate in a meeting, is intended to guarantee that ample space, sufficient visibility, and adequate acoustics will be provided. |